A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE

ANNOUNCEMENT: Join us Wednesday, October 4th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Legal Issues with Data (Big and Small).” Details available here.

JUDICIAL: Includes secured transactions, administrative law, renewable energy, CWA, and landowner liability issues.

In Mark MOORE, Plaintiff and Appellee, v. GORAN, LLC and John Does 1-5, Defendants and Appellants, DA 17-0032, 400 P.3d 729 (Mont. August 22, 2017), a gravel-pit owner sued buyer, a construction company working with the state Department of Transportation, for “breach of contract, a violation of the Prompt Payment Act, and unjust enrichment arising from buyer’s alleged refusal to pay final invoices.” Construction company counterclaimed for “breach of contract, breach of duty of good faith and fair dealing, and unjust enrichment.” Lower court granted summary judgment for seller and buyer appealed. Supreme Court held that the “crushed aggregate material” at issue was a “good” under the Uniform Commercial Code (UCC), and that “the weight of the material as determined at the seller’s gravel pit formed the basis of payment under the purchase contract.” Affirmed for seller.

In TRISHA RENEE HAIGHT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant, No. 1:17-cv-00014-CL, 2017 WL 4180460 (D. Or. September 21, 2017), plaintiff received mortgage assistance form the USDA and after missing thirty consecutive payments, USDA “accelerated” her loan. Plaintiff appealed the USDA’s notice of acceleration and received an “adverse final determination” from USDA. On appeal, plaintiff alleged the Government violated the Privacy Act of 1974 and Fair Debt Collection Practices Act (FDCPA). Court observed that plaintiff’s complaint stated that “the USDA violated the Privacy Act and alleges no facts relevant to any violation of the statute, let alone an ‘intentional or willful’ violation.” Court also noted that plaintiff’s complaint made “no reference to unauthorized disclosures of Plaintiff’s personal information or thwarted attempts to access any records in possession of the USDA.” Plaintiff’s claims for violation of FDCPA dismissed.

ILLINOIS LANDOWNERS ALLIANCE, NFP, et al., Appellees, v. ILLINOIS COMMERCE COMMISSION et al., Appellants, Nos. 121302, 121304, 2017 IL 121302 (Ill. September 21, 2017) involved a review defendant’s order granting company a “certificate of public convenience and necessity” for construction of a high voltage electric transmission line. Appellate court reversed the order on the grounds defendant had “no authority under the Public Utilities Act to consider company’s application for a certificate of public convenience and necessity because the company did not qualify as a public utility under Illinois law.” State Supreme Court considered whether company qualified as a public utility and noted that the company “does not presently own, control, manage, or operate any plant, equipment, property franchise, etc., in Illinois or elsewhere to be used for or in connection with the production, transmission, or sale of electricity or any of the other commodities or services covered by the Public Utilities Act.” Appellate court ruling affirmed.

SOUTHERN APPALACHIAN MOUNTAIN STEWARDS, ET AL., Plaintiffs, v. RYAN ZINKE, SECRETARY OF THE INTERIOR, Defendant, No. 2:16CV00026, 2017 WL 4171391 (W.D. Va. September 20, 2017) concerned whether Secretary of the Interior’s denial of a federal inspection of selenium levels at a surface coal mine’s outfall was “arbitrary and capricious.” Plaintiff sent a letter to the Virginia Division of Mined Land Reclamation (DMLR) claiming the mine at issue was “discharging selenium without permit authorization in violation of the Clean water Act (CWA),” and in excess of Virginia’s “chronic toxicity standard for selenium.” Court found that the Interior Board of Land Appeals’ decision did not “address key evidence, and its finding that DMLR’s sampling showed there was no violation of Virginia’s water quality standards runs counter to the record evidence and fails to address an important aspect of the plaintiffs’ complaint.” Court ordered defendant to conduct a federal inspection to address plaintiff’s allegations.

In Jay KUROWSKI f/n/f Christopher Kurowski v. TOWN OF CHESTER, No. 2016–0406, 2017 WL 4182905 (N.H. September 21, 2017), plaintiff sued after suffering injuries after being struck by a person on a rope swing attached to a tree near a pond owned by defendant (Town). Lower court dismissed plaintiff’s negligence and intentional tort claims against Town, “as barred by the recreational use immunity statutes.” Appellate court found that plaintiff’s complaint “failed to allege sufficient facts” demonstrating that the Town “had actual or constructive knowledge that its conduct was substantially certain to result in injury.” Affirmed for defendant.

REGULATORY: Includes EPA, FWS, and NOAA  rules and notices. 


Rule EPA is taking final action finding that the state of California has failed to submit State Implementation Plans (SIPs) to satisfy certain requirements of the Clean Air Act (CAA) for the 2008 8-hour ozone National Ambient Air Quality Standards. Info here.

Rule EPA is approving a revision to the Minnesota State Implementation Plan (SIP) submitted on October 4, 2016. Info here.

Rule EPA is taking final action to approve 20 negative declarations for four designated facility classes in all Region 8 states. Details here.

Rule EPA is amending our recent proposal to approve a revision to the Louisiana State Implementation Plan (SIP) for regional haze submitted for parallel processing on August 24, 2017. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS announces the availability for comment of three incidental take permit applications and three proposed habitat conservation plans. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule the South Atlantic Fishery Management Council has submitted Amendment 41 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region for review, approval, and implementation by NMFS. Info here.